The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge. Alito didn't know that he had been Miers's choice for the O'Connor vacancy after Roberts got the nod for the top spot. She liked his quiet confidence; he didn't seem to be pushing too hard for the job. When Alito was nominated just four days after Miers dropped out, she greeted him warmly in the White House, moments before Bush introduced him as his next nominee.

Note the implication: Others lost favor by pushing too hard.

And here's Greenburg's conclusion:

Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas. Together with those two justices, Alito and Roberts make the Roberts Court the most conservative Supreme Court in half a century. Roberts and Alito will not be as forceful as Scalia and Thomas on the bench or in their opinions; they are unlikely to push moderates away with their strong views. For that reason, they may be more effective than Scalia or Thomas in finally removing the court from the contentious social issues that conservatives think belong in legislatures. With the court now poised to recede from some of those divisive cultural debates, George W. Bush and his lawyers at the White House and Justice Department will continue shaping the direction of U.S. law and culture long after many of them are dead.

So, that seems to say, if there's any moderation in Roberts and Alito, it serves the function of making their conservatism more effective.

6 comments:

Alito and Roberts bring to Washington a trait long missing from the elites who inhabit that carousel of egos; humility. Fortunately, this trait is probably misread by the bluebloods as subservience not unlike the servant help they employ at home.

The country will be well served by Roberts and Alito for generations to come. This is another nail in the coffin of the 60's 'Me Generation' and their religion of nihilism.

"So, that seems to say, if there's any moderation in Roberts and Alito, it serves the function of making their conservatism more effective."

Define "moderation." ;) Quite aside from the substantive considerations about what "moderate" or "modest" means in the context of an actual case, are Alito and Thomas "moderates" on the question of legislative history because they're more willing to use it than Scalia but less so than Souter? Is it more moderate to silently join an opinion that you have reservations about, as Roberts wants his colleagues to do, or to write separately to clarify the point? By that measure, the least moderate Justice on the present court is John Paul Stevens! Or by "moderate," do you mean the O'Connor-ish "pragmatically determining the best result, with all factors being considerate, and carefully eliding any obstacles that might come between the court and its determination of the best result"? That approach doesn't seem particularly moderate to me.

Greenburg's statement that "Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas" does rather beg the question of what Greenburg (and Bush) think that mold is. After Zedner and United States v. Gonzalez-Lopez, how can anyone contend that Alito, in particular, is "in the Scalia mold"? It doesn't seem right, either, to call Roberts as being in Thomas' mold. Both the Chief and Justice Alito seem, more than anything, to be in the mold of the old Chief. Greenburg labels "Roberts and Alito [as] two of the most conservative justices to reach the court in many years." That might be so. But that does not make them in the mold of Scalia and Thomas.

Still, I look forward to her book. I was one of the early dissenters on Miers, and it's going to be interesting to see how that chain of events played out on the other side of the looking glass.

Another thought. Is the moderation of the plurality approach in Hamdi preferable? Or is the "extremism" of Scalia and Stevens to be preferred, they insisting that it was impermissable for the executive branch to indefinitely deprive an American citizen of his liberty without due process of law - indeed, without even charging him with a crime? Contra Goldwater, is moderation in the pursuit of justice now a virtue?

DTL,I would have thought that the Chief Justice's dissent in Georgia v. Randolph ("[t]he rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room"), and the very fact that his opinion for the court in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. were "moderate," to name but two. And while the Chief didn't write Ayotte, it is fanciful to suppose that the court's issuing of a unanimous ruling in an abortion case, overturning a pro-abortion ruling in the court below on narrow grounds, was not both moderate and the result of Roberts' work.

It all depends how you define moderate. Rather than asking you to offer your definition of "moderate," how about if I ask you a few questions to calibrate your understanding of the term "moderate"? Which opinion from last term, from either the Chief Justice or Justice Alito, would you say is particularly or outstandingly immoderate? Can you suggest an opinion or two authored last term by Justices Stevens, Kennedy, Souter, Breyer or Ginsburg would you say was notably immoderate?

Or, perhaps more to the point, could you offer an example of a decision last term (that is, a case argued and decided by signed opinion) where you think that the result supported by the Chief and Justice Alito was wrong, but none-the-less moderate?

Anything to add, DTL, or should we just assume that by "[w]e have yet to see one example of their so-called 'moderation'," you mean "I'm a moderate, so if they don't agree with me, ipso facto they must be immoderate"?